Prothonotary
Morneau:
This
is
a
decision
on
an
application
from
the
judgment
creditor,
Her
Majesty
the
Queen,
for
a
garnishment
order
against
the
garnishee.
In
reaction
to
this
enforcement
measure,
the
latter
party
filed
a
written
objection
with
central
argument
to
the
effect
that
the
second
paragraph
of
section
1673
of
the
Civil
Code
of
Québec
(C.C.Q.)
now
requires
that
the
judicial
compensation
provided
by
the
section
has
a
retroactive
effect
to
the
day
that
it
was
applied
for
by
a
party.
Section
1673
reads
as
follows:
1673.
Compensation
is
effected
by
operation
of
law
upon
the
coexistence
of
debts
that
are
certain,
liquid
and
exigible
and
the
object
of
both
of
which
is
a
sum
of
money
or
a
certain
quantity
of
fungible
property
identical
in
kind.
A
person
may
apply
for
judicial
liquidation
of
a
debt
in
order
to
set
it
up
for
compensation.
Despite
the
opposing
position
maintained
by
counsel
for
the
garnishee,
I
believe
that
the
approach
of
counsel
for
the
judgment
creditor
must
prevail.
Hence,
I
conclude
that
when
the
second
paragraph
of
section
1673
of
the
C.C.Q.
was
enacted,
the
Quebec
legislature
did
not
overturn
the
well-established
case
law
concerning
the
lack
of
retroactivity
in
judicial
compensation.
I
am
also
of
the
opinion
that
the
legislature
merely
codified
a
practice
established
by
the
courts,
specifically
the
right
of
a
party
to
apply
for
judicial
compensation
through
a
counterclaim,
while
still
maintaining
the
restriction
found
in
section
1196
of
the
C.C.L.C.
and
reiterated
in
section
1681
of
the
C.C.Q.
under
which
compensation
may
not
be
effected
to
the
prejudice
of
the
acquired
rights
of
a
third
person.
The
following
authorities
examine
this
topic:
A.S.M.
Canada
Limited
v.
Créalise
Conditionnement
Inc.,
S.C.,
J.E.
97-1399,
14pp.,
p.
23
BEAUDOIN,
Jean-Louis,
Les
Obligations,
4th
edition,
Yvon
Blais
Inc.,
Cowansville,
1993,
pp.
555
et
seq.
KARIM,
Vincent,
Commentaries
sur
les
obligations,
Volume
2,
Yvon
Blais
Inc.,
Cowansville,
1997,
pp.
495
et
seq.
TANCELIN,
M.,
GARDNER,
D.,
Jurisprudence
commentée
su
es
obligations,
6th
edition,
Wilson
&
Lafleur,
Montréal,
1997,
pp.
704
et
seq.
TANCELIN,
Maurice,
Des
obligations,
actes
et
responsabilité,
Wilson
&
Lafleur,
Montréal,
1997,
pp.
607
et
seq.
VEZINA,
N.,
LANGEVIN,
L.,
“L’extinction
des
obligations,”
Collection
de
droit
1997-1998,
Vol.
5
-
Oligations
et
contrats
-
Yvon
Blais
Inc.,
Cowansville,
pp.
133
et
seq.
In
practical
terms,
these
legal
principles
mean
that
the
garnishee,
who
is
indebted
to
the
execution
debtor,
would
become
a
creditor
of
the
execution
debtor
only
following
a
final
judgment
which
has
not
yet
been
rendered
and
thus
is
subsequent
to
the
judgment
creditor’s
instant
application
for
a
garnishment
order.
Consequently,
the
garnishee
cannot
claim
compensation
to
the
prejudice
of
the
judgment
creditor.
This
main
conclusion
means
that,
in
my
opinion,
there
is
no
need
to
rule
on
the
other
arguments
raised
by
the
garnishee,
including
the
presence
of
sufficient
relatedness
between
the
garnishee’s
debt
and
its
claim
against
the
execution
debtor.
For
these
reasons,
the
garnishment
order
absolute
requested
by
the
judgment
creditor
will
be
issued.
Order
THE
COURT
ORDERS
that
all
amounts
due
or
becoming
due
by
the
garnishee
to
the
judgment
debtor
be
absolutely
garnished,
assigned
and
transferred
to
Her
Majesty
the
Queen
in
right
of
Canada,
and
in
particular,
amounts
for
services
rendered
and
goods
sold
and
delivered
for
the
sum
of
$35
407.02,
in
order
to
satisfy,
and
up
to
the
amount
owed
under,
the
Certificate
filed
in
the
case
at
bar
on
May
28,
1998
pursuant
to
s.
223
of
the
Income
Tax
Act,
namely
the
sum
of
$28
812.61,
plus
interest
compounded
daily
at
the
rate
prescribed
in
accordance
with
the
Income
Tax
Act
on
the
said
amount
for
the
period
from
March
25,
1999;
plus
costs
of
these
garnishment
proceedings,
amounting
to
$2
457.59.
IT
IS
ACCORDINGLY
ORDERED
that
the
garnishee,
Honeywell
Limited,
shall
pay
Her
Majesty
the
Queen
the
sum
of
$28
812.61,
plus
interest
compounded
daily
at
the
rate
prescribed
in
accordance
with
the
Income
Tax
Act
on
the
said
amount
for
the
period
from
March
25,
1999
to
the
date
of
payment,
plus
costs
of
these
garnishment
proceedings,
amounting
to
$2
457.59,
the
said
amount
to
be
awarded
in
priority
to
the
amount
evidenced
by
judgment,
up
to
the
amount
of
$35
407.02
owed
by
the
garnishee
to
the
judgment
debtor.
Order
accordingly.
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